The Candidates on War Powers, Executive Privilege, Signing Statements, Etc.

Marty Lederman

I don't want to distract our readers from the very important story about the Administration's stonewalling of the 9/11 Commission -- read about the New York Times's essential story and the Zelikow Report here -- but this is very much worth your attention, too:

Continuing his invaluable work, Charlie Savage of the Boston Globe today publishes responses of nine presidential candidates to a series of questions he posed about the topics that have dominated this blog since 2004.

Some highlights:

On the Democratic side, Senators Clinton and Obama both disclaim any presidential authority to disregard statutes and treaties such as the torture act, FISA, statutes imposing troop limits, and the Geneva Conventions. Senators Biden and Dodd, and Governor Richardson, agree, except that Governor Richardson adds that the President can disregard statutory limits "in some limited circumstances, such as where it is necessary to protect the troops on the ground or to repel an attack not contemplated by the congressional directive." Senator Edwards strongly believes that President Bush should not have disregarded (or threatened to disregard) such laws; but he does not quite clearly answer the questions about constitutional power.

Senators Clinton and Obama both state that the President does not have the inherent constitutional power to unilaterally take military action against Iran, including strategic bombing, in the absence of an imminent threat of attack on the U.S. or its citizens. Senator Biden and Governor Richardson agree. Senator Dodd does, too, but adds that the President can act unilaterally if there is an imminent threat to the "national security" of the U.S. or its allies. Senator Edwards does not answer the question directly, but opposes the use of force in Iran.

Interestingly, both Senator Clinton and Senator Obama -- as well as Senators Biden and Dodd, and Governor Richardson -- answer "no" to the question whether the Constitution permits a President to detain U.S. citizens without charges as unlawful enemy combatants. Senator Obama qualifies that the President has no such "plenary" power. To the extent any of the candidates is here suggesting that such detention would be unconstitutional even where Congress has authorized it, such a view would amount to a dissent from the Supreme Court's holding in Hamdi -- perhaps on the Suspension Clause grounds expressed by Justice Scalia, or perhaps because of the Treason or Due Process Clauses (or some combination thereof). But the Q's and A's on this point are not precise enough to nail this down.

Senators Biden and Dodd, and Governor Richardson, like John McCain (see below), state that they would never issue signing statements with constitutional objections to statutory provisions. I think this is a mistake, and that the views of Senators Clinton and Obama are closer to the proper mark.

As for the Republicans:

Senator McCain denies that the President has the constitutional power to violate the torture act, or FISA, or treaties, but in response to the question about a statute limiting troop deployment, he states that "it's beyond Congress's authority to micromanage wars." (On the other hand, he states categorically (and mistakenly) that "I don't think the president has the right to disobey any law," so his views on this question remain a bit uncertain.) McCain also denies that the President has the constitutional power to unilaterally bomb Iran, absent an imminent threat. Surprisingly (and in my view unfortunately), McCain states that he would not issue any signing statements.

Ron Paul, true to his convictions, is libertarian across the board, which in this case means skeptical of executive power.

Candidates Giuliani, Huckabee and Thompson refused to respond to the questionaire. On behalf of Guiliani, Ted Olson issued this statement:

The President must be free to defend the nation. While the Congress has an essential constitutional role in our national defense, the Supreme Court has also recognized that the president has certain core constitutional responsibilities to ensure that our nation can defend itself and our fundamental liberties in times of emergency. Controversies on this question are as old as our Constitution, and have been faced by many of our most respected presidents, and they will not disappear even after we have succeeded in the war that terrorists have declared on our citizens and homeland. Our aim must be to strike a balance between order and liberty that addresses the challenges we face within the bounds of the Constitution.

Senators Clinton and Obama both state that the President does not have the inherent constitutional power to unilaterally take military action against Iran, including strategic bombing, in the absence of an imminent threat of attack.

Interesting. Does that constitutional theory apply only to Iran, or does Senator Clinton now disavow the war in Kosovo?

The Senators are still thinking like legislators, which is why such folks rarely get elected President.

If one of the Senators gets elected President and assumes the actual job of defending the country rather than kibitzing from the back benches, anyone want to wager on whether their views on executive power will "evolve?"

I don't think I understand what "signing statement" means in this context. Can anyone explain?

Wow Mitt is a real piece of work, judging by his responses to the questions. I made up my mind that he was a phony in a starched shirt during the Scooter Libby verdict aftermath. Mitt said he would pardon Libby, but Mitt never once pardoned a single person when governor of Mass. Not one poor black kid who sold crack at 17 and had turned his life around; not one abused wife who shot her husband; not one case of slim circumstantial evidence; not one case based solely on a paid informant. What a bitch in a suit Mitt is.

Bush has won court rulings upholding his right to indefinitely imprison citizens suspected of terrorist links

What are they talking about here? In Hamdi v. Rumsfeld five Justices supported this proposition (provided that there was some kind of due process for the detainees), but one, Thomas, was in dissent, so is this technically correct?

Having been deeply involved politically for decades, I have not seen a presidential candidate as powerful and as true to Constitutional republican principles as Congressman Dr. Ron Paul. Dr. Ron Paul is a genuine modern American "founding father" statesmen. His powerful message is simply the same message preached and established by the founding fathers at the beginning of our nation: genuine AMERICANISM. Genuine God-given inalienable rights and freedoms secured by a fettered and chained LIMITED government that truly allows the People to be "SELF-GOVERNING" is the message that is radically uniting people from all political persuasions to get out into the streets and support and campaign for Dr. Paul. It's an unbelievable sight to behold. I believe it's a movement that is even bigger than President Reagan, and perhaps even more truer to those founding principles of our nation.

The biggest problem President Paul is/will face is: the executive branch is not simply a "one man show" -- it is composed of divisions of people who are suppose to carry out the President's mandates. How Dr. Paul is going to root out the VERY POWERFUL utterly corrupt operatives behind the scenes and within the government may prove impossible. (Notice how, despite which party "holds power" the same faces and names show up controlling levers of power and control?!)

No one can deny that something is DANGEROUSLY afoul within our government, and the People have lost control over it. Dr. Paul is THE ONLY contender who has been screaming this reality to the American people for many decades. His congressional voting record of 20+ years, his voluninous writings, speeches and formal statements on a myriad of subjects, and THE WAY HE HAS LIVED HIS LIFE proves beyond all doubt his character and the man who the American People can unite behind and trust.

All of the other candidates, regardless of party, are simply derivatives of the same path toward an oligarchy of two divisions (republicrat and demican) of a one-party fascist State. Dr. Paul is the only candidate willing and courageous enough to get up in front of the world and declare the reality and the truth about our corrupt government and the path of destruction we are currently on.

None. Professor Lederman is a great person, and he is right on a lot of things, but this is a circumstance where his coming from the Office of Legal Counsel biases him in a bad way.

The OLC advises the executive branch on the legality of its actions. However, its opinions are just pieces of paper. Nobody is required to obey them, or even find them persuasive. They are not court opinions, and it is entirely the province of the judiciary to say what the law is, as Chief Justice Marshall said 200 years ago in Marbury v. Madison.

OLC lawyers, as you might imagine, aren't inclined to look at things this way. So they want to say that their opinions, rather than being the meaningless pieces of paper that nobody ever need obey that they are, are in fact binding opinions of a branch that is "co-equal" to the judiciary, that all executive agencies must follow. To do that, however, one has to ignore the text of the Constitution and 200 years of caselaw and pretend that the President, rather than simply being bound to faithfully executing the law, has some judicial power to actually decide what the law is as well.

So, the OLC's official line, through administrations of both parties, is that the President gets to interpret the Constitution himself and disobey acts of Congress-- EVEN ACTS OF CONGRESS THAT PASSED IN HIS ADMINISTRATION AND THAT HE DIDN'T HAVE THE GUTS TO VETO-- rather than simply bringing an declaratory relief action in court and obeying the judiciary that actually has the right to make the call.

Oh signing statements, seem like we have no choice, they are here to stay not because they were authorized by the Constitution (they were not!) but because nature abhors vacuum and statements fill an important void in the overall legal structure of things in this country.

Europeans* who always viewed the legal system in this country with disbelief bordering on scornfulness (and this only adds to that) have problems understanding what the whole kerfuffle is all about. In their world, the situation could not be any simpler, in democracy, they say, people control things (executive and judiciary do not have any inherent powers other than what people grant to them) and they exercise that power via their representatives in Congress. So whatever they say goes, i.e. the laws they pass are binding on everybody. Unfortunately people are not always wise and will enact bad laws. This is handled in their constitutional systems this way - both the legislature and executive can refer bad laws for review by a special judicial body whose word is final - the law either stays and is binding on everybody or is declared (in part or toto) unconstitutional.

No similar mechanism exists in this country despite the Constitution clearly proclaiming the judiciary the ultimate arbiter in "constitutional controversies". Europeans never understood this so here is a brief explanation: (assuming Europeans read this blog)

The US legal system made bringing constitutional controversies before the Supreme Court as difficult as possible for the following reasons:

a) you don't pay us enough to hear your cases and write opinions on them, so to avoid excessive workload we require that you bring your "constitutional controversies" to lesser courts first and only if you can demonstrate actual harm deriving from the alleged unconstitutionality. (In Europe the standing and that's before the highest court in the land is automatic for a number of constitutional actors - presidents, legislators, prime ministers, etc).

b) actually we want lesser courts to pronounce on these things first because contrary to what most think we are not that wise or smart so letting the issue brew in the "laboratory of lesser courts" goes long way to ensure that what we finally say will have legal and constitutional legs to stand on.

With a system like this there is clearly no way anybody can quickly block a patently bad law however dire the situation may be so the system invented ex dira necessitas a set of workarounds to remedy the situation. These are primarily signing statements and EOs or rather the expanded role given to them by recent administrations.

So in a nutshell we replaced a potentially hasty judgement by the Supreme Court judges with a hasty judgement by the executive an arrangement many consider not very wise. But then again some some say we can live with it. Your call.

----* by Europeans I mean those of continental variety, the British still labor under a mixture of feudal and modern European legal concepts, beside we took their old feudal system, modernized it a bit (in the 18th century!) and kept it preserved ever since, so no wonder it tickles their nostalgic bone.

Europeans* who always viewed the legal system in this country with disbelief bordering on scornfulness (and this only adds to that) have problems understanding what the whole kerfuffle is all about. In their world, the situation could not be any simpler, in democracy, they say, people control things (executive and judiciary do not have any inherent powers other than what people grant to them) and they exercise that power via their representatives in Congress. So whatever they say goes, i.e. the laws they pass are binding on everybody.

:::chuckle:::

1) I would gladly compare the US legal system against any in continental Europe over the past two centuries with their kings, emprerors and totalitarian dictators.

2) Despite claims that rendition is unlawful under EU laws, nearly every single EU country participated in the CIA's rendition program to get terrorists out of their countries. Some respect for the law.

3) The executive and its bureaucracies have extensive inherent powers under the EU and individual countries' constitutions. Indeed, France operates a very strong executive system.

Unfortunately people are not always wise and will enact bad laws. This is handled in their constitutional systems this way - both the legislature and executive can refer bad laws for review by a special judicial body whose word is final - the law either stays and is binding on everybody or is declared (in part or toto) unconstitutional.

No similar mechanism exists in this country despite the Constitution clearly proclaiming the judiciary the ultimate arbiter in "constitutional controversies".

Contrary to the frequent posts here calling for the President to seek advisory opinions from the courts before acting contrary to an unconstitutional statute, the US Constitution indeed requires an actual case or controversy before the courts may rendering a ruling. Moreover, even with a case or controversy, the courts prefer to defer to democracy and allow the elected branches to resolve their own balance of powers disagreements.

It is true that some of our states and EU countries allow their courts to provide advisory opinions. However, if your goal is to grant the people the greatest amount of power, it is arguable whether the resulting clarity of the decision of an unelected court is better than allowing the democratic branches to resolve their own disputes in most cases.

Contrary to the frequent posts here calling for the President to seek advisory opinions from the courts before acting contrary to an unconstitutional statute, the US Constitution indeed requires an actual case or controversy before the courts may rendering a ruling. Moreover, even with a case or controversy, the courts prefer to defer to democracy and allow the elected branches to resolve their own balance of powers disagreements.

Boy, you are an even bigger liar than I thought, Bart. If the President threatens to violate a law, there is an actual case and controversy. If you believe otherwise, than a huge line of cases dating back to the 1930's which provide that a threatened injury is all that is necessary for a declaratory judgment case to be ripe must all be wrongly decided. But you don't believe that. You are just lying.

As for the political question doctrine, the interpretation of a congressional statute (FISA) and the Fourth Amendment have NEVER been held to be poltiical questions and never will be. That doctrine is limited to constitutional questions about such things as reapportionment, seating members of Congress, withdrawing from treaties, and the like. And it is narrowly interpreted even in that context.

You don't really believe that the President can't file a lawsuit to get his surveillance program declared legal. You just make arguments that you know to be false because your overarching purpose is not to tell the truth, but to defend the Bush Administration. What an awful person you are, Bart.

Boy, you are an even bigger liar than I thought, Bart. If the President threatens to violate a law, there is an actual case and controversy.

Threats to violate a law are not themselves violations of the law and, thus, do not create cases or controversies for the courts.

If you believe otherwise, than a huge line of cases dating back to the 1930's which provide that a threatened injury is all that is necessary for a declaratory judgment case to be ripe must all be wrongly decided.

This is your case, prove it. Feel free to cite all these 1930s era cases where a court took a case or controversy based purely upon a threat by FDR to violate a law.

As for the political question doctrine, the interpretation of a congressional statute (FISA) and the Fourth Amendment have NEVER been held to be poltiical questions and never will be. That doctrine is limited to constitutional questions about such things as reapportionment, seating members of Congress, withdrawing from treaties, and the like.

The 4th Amendment does require a warrant for intelligence gathering against agents of foreign groups and thus cannot be a basis for enacting FISA.

Instead, FISA raises thorny questions about the separation of powers between the elected branches. Courts hate to play referee in these cases and have nearly unanimously avoided ruling on the substantive claims of the civil FISA cases for years now.

You don't really believe that the President can't file a lawsuit to get his surveillance program declared legal.

No competent lawyer would opine that the President can constitutionally ask an Article III court for an advisory opinion as to whether FISA can constitutionally limit the TSP.

Threats to violate a law are not themselves violations of the law and, thus, do not create cases or controversies for the courts.

Really? Then you must think the Declaratory Judgment Act (enacted in the 1930's) is unconstitutional, right? Because it confers standing to bring a suit based on a threatened injury in federal court. Was Sierra Club v. Morton wrongly decided? Steffel v. Thompson?

Again, Bart, STOP MAKING THINGS UP. We know you like the Bush Administration. But if you can't defend their policies and tell the truth, I would suggest that you should stop defending their policies rather than stopping telling the truth.

So that everyone knows what is going on here, Bart made up a doctrine that where the government threatens to violate the Constitution, the federal courts are not empowered to hear a lawsuit under Article III of the Constitution, which allows courts to hear "cases or controversies". The actual doctrine is any actual or threatened injury creates a case or controversy. Bart is a practicing lawyer who has filed declaratory judgment suits; he therefore actually knows he was lying. But he lied anyway, because it serves his interest of defending the Bush Administration at all costs.

Everyone should remember this moment when deciding whether to ever listen to Bart DePalma again.

The 4th Amendment does require a warrant for intelligence gathering against agents of foreign groups and thus cannot be a basis for enacting FISA.

Actually, that has never been resolved. The Keith case ASSUMED it arguendo, and some lower courts have so held, but we have never had a Supreme Court opinion on it.

In any event, that wasn't my point. My point was that the violation of the Fourth Amendment was not a nonjusticiable "political question". Stop changing the subject.

No competent lawyer would opine that the President can constitutionally ask an Article III court for an advisory opinion as to whether FISA can constitutionally limit the TSP.

Bart, stop being a jerk. It is not an "advisory opinion". An advisory opinion has A SPECIFIC MEANING IN CONSTITUTIONAL LAW. It means asking the courts for an opinion on a hypothetical case or the constitutionality of a bill that has not become law.

We are NOT talking about advisory opinions here, and you know it. We are talking about when the President decides HE WANTS TO VIOLATE A STATUTE BECAUSE HE BELIEVES HE HAS THE CONSTITUTIONAL POWER TO DO SO. At that point, there is no "advisory opinion"-- there is "an actual or threatened violation of the law", which is the standard for justiciability for a Declaratory Judgment action.

Again, why do you lie so much? Does the Bush Administration pay you to do it, or do you simply have no self-respect. In any event, where I come from lawyers are only supposed to use those methods that are consistent with the truth. I am ashamed that some of my colleagues in this profession don't really care about that principle.

DePalma needs to read the Constitution again. On the very basic level it is we who run this show not judiciary or executive - that prerogative is solely ours to have. Neither judiciary nor executive ever had any inherent powers, all their powers derive from whatever "We the People" granted to them in that document. Read it again, it starts with "We the People" not "We the Judges or "We the President". That's Civics 101. This is no UK where some old woman claims inherent powers over people of that country whether they like it or not*. I thought we had it settled more than 200 years ago.

Re judicial reluctance to referee conflicts between other branches. As admirable as this is in principle (I like the concept of "constitutional avoidance" as much as everybody else) if you take it too far you are in the danger of being guilty of shirking your basic constitutional responsibilities. Why? Because some conflicts cannot be resolved without involvement of 3rd parties.

Example. We (via our elected representatives) have the sole right to decide the laws of this land but with signing statements that right appears effectively illusory now, Bush and Cheney can by a simple fiat declare any law null and void. What realistic recourse do we, that is our representatives in Congress, have? None, they can pass another law, to the same effect most likely, or deny them funds to run their branch an option so suicidal that is basically un-exercisable. The issue here is not any particular law but the very essence of balance of power - does the executive have the right to disregard any law passed by the Congress other than to veto it.

Signing statements basically render the legislature (us) totally impotent, there is nothing we can do about it. The proper name for this is unacceptable usurpation of powers that needs to be checked by judiciary as soon as possible.

I'm not saying that European arrangements for resolving constitutional controversies are the best in the long run (they've been in place for too short for that, but the current system where nobody can get the judiciary to resolve constitutional controversies of this magnitude is unacceptable.

----

* Here is the oath British future subjects are forced to take - chew on this feudal and totally unacceptable imposition (where the hell is the European Court of Human Rights?) for a while: "I swear by Almighty God that, on becoming a British citizen, I will be faithful and bear true allegiance to Her Majesty Queen Elizabeth the Second, Her Heirs and Successors according to law."

BD: Threats to violate a law are not themselves violations of the law and, thus, do not create cases or controversies for the courts.

Really? Then you must think the Declaratory Judgment Act (enacted in the 1930's) is unconstitutional, right?

:::sigh:::

You are running down a rabbit hole here.

Your original claim is that the President can go to a court and ask them to render a ruling on a prospective action which appears to be in violation of a statute.

I replied that the courts do not have jurisdiction to hear such a claim because there is no case or controversy involved and the President is asking for an advisory opinion.

Now you are claiming that the President would be seeking a declaratory judgement. This is also incorrect.

A declaratory judgment requires a case in controversy where one party is in the process of violating the legal rights of a second party and legal action is underway or imminent. The damaged party seeking a DJ is simply asking the court to enter a ruling determining the duties, rights, obligations and status of the parties as an alternative to filing a suit seeking damages.

I have filed these on occasion in complex contract or administrative actions.

Declaratory judgments do not involve a single party going to court to ask the court's opinion as to whether a prospective action will violate the criminal code.

Furthermore, Sierra Club v. Morton involved an administrative land use process which was already well underway. The Sierra Club simply sought to intervene and this case involved whether they had standing to do so. This case does not address your advisory opinion argument in any way.

Finally, you may want to reconsider your childish habit of calling others liars for making up the law when you are continuously providing completely inapposite legal authority to support a proposition for which there is no authority.

Bart, the Declaratory Judgment Ac is not narrow. It is broad. It says that a federal court, upon filing of an appropriate pleading, "may declare the rights and other legal relations of ANY INTERESTED PARTY seeking such declaration, whether or not further relief is or could be sought". That's 28 USC 2201.

I mean, we really are at the end of your BS parade here, Bart. You are apparently contending that the President / Executive Branch is NOT an interested party when it comes to whether it has the authority to violate a statute or whether its threatened action violates a statute.

In fact, under Teplitsky v. Bereau of Compensation, it is well established that the US can bring suits under the Declaratory Judgment Act.

I will note that you also don't even address my other arguments, i.e., that a threatened injury constitutes an actual controversy, and that Fourth Amendment and FISA issues are not political questions.

Finally, you continue to get "advisory opinion" wrong. An unconstitutional advisory opinion is one sought BEFORE a controversy occurs. But where there is a threatened violation of a statute or the ocnstitution, a declaratory proceeding is ripe. You know this, as you admit you have filed these actions. Yet you lie anyway.

Really, Bart, at some point, just stop making up the law. It is sad that a member of my profession, which is supposed to champion the intergrity of the law, has decided that making it all up is OK as long as it furthers the goals of the Bush Administration.

(a) In a case of actual controversy within its jurisdiction..., any court of the United States, upon the filing of an appropriate pleading, may declare the rights and other legal relations of any interested party seeking such declaration, whether or not further relief is or could be sought.

Black's Law Dictionary (6th ed.):

Actual Controversy. A declaratory judgment may be rendered only in cases of "actual controversy" defined as concrete cases touching legal relations of parties having adverse legal interests and susceptible to an immediate and definitive determination of the legal rights of the parties in an adversary proceeding upon the alleged facts. Maryland Casualty Co. v. Pacific Coal & Oil Co., 312 U.S. 270, 273 (1941) (citation added).

Declaratory judgments are not one man shows. Such suits are always brought by the injured party and not by the party allegedly violating the law. Ashwander v. Tennessee Valley Authority, 297 U.S. 288, 56 S. Ct. 466, 80 L. Ed. 688 (1936).

Second, the Fourth Amendment is self-executing, and is not a "basis" for any laws. Laws enacted must conform to the Constitution, including the Fourth Amendment, but the BoR doesn't provide any "basis" for any such laws outside of what these amendments themselves dictate on their own (and that can only be to circumscribe the permissible range of any legislation)....

Declaratory judgments are not one man shows. Such suits are always brought by the injured party and not by the party allegedly violating the law. Ashwander v. Tennessee Valley Authority, 297 U.S. 288, 56 S. Ct. 466, 80 L. Ed. 688 (1936).

1. I realize there is an actual controversy requirement. As noted above, "actual or threatened injury" satisfies it. A President who intends to violate a statute he contends is unconstiutional meets that.

2. Your only cite for the proposition that the President may violate laws is the Clinton Administration's OLC memo. Guess what. The OLC will always take that position. The OLC is biased, because if the President has that power, it arrogates more power to the OLC. They like that over there.

The OLC memo is based on cases where the courts were not asked to pass on whether the President had that power, but simply adjudicated the merits of the constitutional claim. They don't establish any principle that the President has that power. In fact, Marbury v. Madison indicates that he doesn't. In fact, US v. Lovett, one of the cases cited by the OLC, approves the procedure of the President ENFORCING the law and then TAKING THE POSITION IN COURT that it is unconstitutional.

Here is a specific and very recent example that illustrates problems with signing statements - the McCain torture legislation that was overwhelmingly passed by Congress after allegations surfaced that Bush Administration habitually torture people.

Bush signed it, no problem there, but in the attached signing statement he (re)asserted his II article rights. Given the substance of the legislation (deals with torture only) the only possible conclusion is he reserves the right to torture in the future regardless of anything Congress may tell him. Thus he effectively vetoed it without having to invoke the veto formally.

The funny thing of course is that by not having been vetoed the law is technically still standing, standing so much that it will be incorporated in future editions of US Federal Code, given its own section number, etc. But as far as Bush will be concerned that will amount to nothing thanks to his statement.

Now DePalma claims Congress could sue to force him to obey their statues and refrain from torture but actually that does not appears possible in the legal system of this country. Congress has zero standing power as things stand now, they cannot even prosecute people who refuse to answer their own subpoenas for Christ sake!

Viewed somewhat differently the situation amounts to this - "We the People" created his office and "We the People" gave him the power to wage wars and responsibility to defend the country but when "We the People" come back and say via our representatives in Congress that that power does not include the power to torture anybody, he says eff off, once you gave me my powers they are absolute, you cannot limit me now in any way.

In any European country the resolution would be swift in coming, exercising their constitutional (standing) rights McCain and his colleagues would take the case immediately to the Supreme Court asserting overreaching by the executive and demanding that the court restore the proper constitutional balance.

This unfortunately is not possible in this country so we will have to learn to live with the sad reality that it is Cheney and Bush who have the final say, regardless of anything.

1. I realize there is an actual controversy requirement. As noted above, "actual or threatened injury" satisfies it. A President who intends to violate a statute he contends is unconstiutional meets that.

Whether the injury is actual or threatened is irrelevant. The point is that declaratory judgments can only be sought by the injured party in an adversary proceeding. Your suggestion that the President should unilaterally go to a Court to ask their opinion as to whether a statute is unconstitutional seeks an unconstitutional advisory opinion and not a declaratory judgment.

2. Your only cite for the proposition that the President may violate laws is the Clinton Administration's OLC memo. Guess what. The OLC will always take that position. The OLC is biased, because if the President has that power, it arrogates more power to the OLC. They like that over there.

The OLC memo cited multiple cases for the proposition that the President may make his own decision about the constitutionality of a statute and ignore it if unconstitutional. Contrary to your claim about OLCs backing maximum executive power, the recommendation of the Clinton OLC was not the same as those cases, but rather like your suggestion that the President should go to the courts.

The OLC memo is based on cases where the courts were not asked to pass on whether the President had that power, but simply adjudicated the merits of the constitutional claim. They don't establish any principle that the President has that power. In fact, Marbury v. Madison indicates that he doesn't.

Marbury simply stands for the proposition that the Courts get the final say as to the constitutionality of a statute and not that the other two elected branches cannot make their own interpretations absent a final court holding. It is impossible for these branches to do their jobs without making these interpretations.

Now DePalma claims Congress could sue to force him to obey their statues and refrain from torture but actually that does not appears possible in the legal system of this country. Congress has zero standing power as things stand now, they cannot even prosecute people who refuse to answer their own subpoenas for Christ sake!

Actually, I doubt that Congress can sue the President for non-enforcement of a statute. I was merely going through the list of possible scenarios this issue could go before a court.

When Goldwater attempted to sue Carter for withdrawing from the Panama Canal Treaty, the Court dismissed the suit under the political question doctrine. I tend to believe that if Congress attempted to sue the President for operating the TSP in violation of FISA, that the Courts would also punt in that case.

The proper remedy for Congress under the political question doctrine is to deny funding for the TSP or to impeach the President for the high crime and misdemeanor of failing to obey FISA.

Whether the injury is actual or threatened is irrelevant. The point is that declaratory judgments can only be sought by the injured party in an adversary proceeding. Your suggestion that the President should unilaterally go to a Court to ask their opinion as to whether a statute is unconstitutional seeks an unconstitutional advisory opinion and not a declaratory judgment.

"Sable also sought a declaratory judgment, challenging the indecency and the obscenity provisions of the amended 223(b) as unconstitutional...."

Someone who wants to challenge the constitutionality of a statute need only "Go tell it to the judge, Mr. President", in the words of JaO. The "injury" here is the threat of prosecution for engaging in the acts that the petitioner claims are unconstitutionally banned.

Sable was not prosecuted. They were not "injured", in the sense that "Bart" suggests is necessary. They demanded "declaratory judgment" and injunctive relief against any future attempts to enforce the unconstitutional restriction.

The preznit can do the same ... if he dares to show his face in court.